Thursday, September 27, 2007

Leib on Interpretation and the Different Types of Direct Democratic Process

Ethan Leib has just posted a paper on SSRN that discusses why interpretive methodology should vary as between initiatives on the one hand and statutes enacted by way of referenda on the other. The paper is called "Interpreting Statutes Passed Through Referendums." Here is the abstract:

Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the manystates that employ them: the referendum and the initiative. Generally speaking, the referendum enables citizens to ratify or reject statutes passed by a legislature, while the initiative enables citizens to draft laws themselves and put them before the populace for a vote. My focus here is the question of the appropriate interpretive approach for statutes subject to the popular vote. By and large, scholars have focused almost exclusively on the direct initiative when they discuss how courts should interpret the products of direct democracy. But courts are saddled with the task of interpreting a broader array of statutory enactments subject to direct democracy. A uniform method of interpretation - one that finds support in many judicial pronouncements - might be defended on the ground that it makes no difference which directly democratic process leads to a law under consideration; irrespective of process, the interpretive inquiry should remain constant. That uniform method could be supported by an assumption that the processes of direct democracy are similar enough to warrant similar treatment for purposes of interpretation. Or it could be supported by an assumption that all forms of direct democracy are underwritten by a political theory that counsels for similar statutory interpretation. I argue here that the uniform method, whatever support it might find in caselaw, is flawed.